Crime of aggression

Crime of aggression is the last of the core international crimes mentioned in the Rome Stat- ute, which is considered to reflect customary international law. Rome Statute’s definition of crime of aggression was only reached in 2010 in Kampala, and not in the original negoti- ations of the Statute.151 _{The article 8 bis of the Statute thus defines crime of aggression as} “the planning, preparation, initiation or execution, by a person in a position effectively to

exercise control over or to direct the political or military action of a State, of an act of ag- gression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.

However, it must be noted that the crime of aggression is a bit different from the other three core crimes. As said, the Rome Statute should reflect customary international law, since the negotiators did not want to go beyond the established law.152 _{However, there is} no consensus on that, whether the definition of crime of aggression is actually reflecting customary international law. This does not mean that the crime of aggression would not be part of customary international law,153 _{but just that its definition may be different in} customary international law than it is currently in the Rome Statute. The issue is that, unlike with the other three core crimes, there is only little development with the definition of crime of aggression after the world war II.154 _{However, there are several reasons due to}

150 _{Dixon 2013, p. 41.} 151 _{Grover 2017, p. 375.} 152 _{Wrange 2017, p. 711.} 153 _{Kress 2007, p. 853.} 154 _{Grover 2017, p. 387.}

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which it is hard to argue that the definition in the above-mentioned article of the Rome Statute would not reflect its customary law counterpart pretty closely. For example, the Special working Group on the Crime of Aggression, which was the team established to solve the issues around the crime of aggression of the Rome Statute wanted the definition of crime of aggression to fit seamlessly into the Rome Statute, which was drafted with a view of departing as little as necessary from the existing custom.155 _{If the article 8 bis is being} compared to the Nuremberg and Tokyo Charters, which were the Charters established to prosecute Nazi and Japanese officials for crimes during world war II, and the Control Coun- cil Law No. 10, which was established to capture other than the major criminals which were covered by the Charters, it can be noted that the definitions of the individual acts of ag- gression are very much alike.156 _{On the other hand, the state act of aggression is based on} the 1974 General Assembly resolution no 3314.157 _{As these are the main written reflections} of state practice and opinio juris on the subject, it is difficult to argue that the Special Work- ing Group was not interested in aligning the definition of the crime and state act of aggres- sion in the Rome Statute with their counterparts under customary international law.158 Thus, it can be stated that these above-mentioned precedents are in the core of the defi- nition of crime of aggression and these core definitions at least reflect customary interna- tional law.159 _{This is important to establish due to the lack of explicit convention on the} crime of aggression of which the national courts could apply.

Thus, the crime of aggression is a so-called leadership crime - also according to customary international law, as established above. This is how it also differs from the three other core crimes.160 _{Basically this means that compared to the other atrocity crimes, only political} and military leaders of a state can commit acts of aggression. This would include heads of state. Other core crimes can be committed by lower officials or even by non-state actors. Thus, the crime of aggression is always committed by the highest of state actors and thus the act is always an official act.

155 _{Barriga 2012, p. 18. See also Grover 2017, p. 387.} 156 _{See the Nuremberg Charter 1945, article 6,}

the Tokyo Charter 1946, article 5 and the Control Council Law no. 10 1945, article 2.

157 _{A/RES/3314(XXIX), December 14, 1974, p. 143 - 144.} 158 _{Grover 2017, p. 388.}

159 _{Wrange 2017, p. 711.} 160 _{Ruys 2017, p. 19.}

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The prohibition of crime of aggression is part of jus cogens norms.161 _{Some scholars have} made generalizations that all jus cogens norms are also subject to universal jurisdiction. However, there is no universal jurisdiction what comes to crime of aggression.162 _{Thus, one} cannot derive a rule regarding universal jurisdiction from jus cogens status of a norm. It must be noted that as discussed in the chapter 2.1 covering jurisdiction, there are other means how a state can prosecute nationals of a foreign state than universal jurisdiction. Thus, some of the general principles of jurisdiction could allow prosecution over the crime of aggression by national courts as well. However, the domestic exercise of jurisdiction over the crime of aggression is controversial for other reasons.163

Is there national jurisdiction at all over the crime of aggression? This is relevant regarding the immunity question, since immunity is immunity from jurisdiction. For example, the ILC has noted that there is no state practise supporting the right of national courts to prosecute leaders of foreign states over the crime of aggression.164 _{The problem here would be that,} unlike with the other three core crimes, a state wanting to exercise jurisdiction over an- other state should do a prior finding of the accused state’s breach of international law. This is the reason why engaging with domestic prosecutions by a state over another state’s head in the case of crime of aggression is problematic: in some cases, use of force is legal. The determination whether the use of force is legal or whether it is considered to be an illegal act of aggression is done by the Security Council, who has the authority to do so. This au- thority is given to the Security Council in the UN Charter, since the very purpose of the UN is provided in the Charter: to maintain international peace and security.165 _{Thus, it would} be challenging, if then states would exercise this power, when it is specially given to the Security Council.

However, if it is accepted, as established above, that the crime of aggression exists in cus- tomary international law as it is in the Rome Statute – or at least how it is in the precedents 161 _{Crawford 2002, p. 188, para 5.}

162 _{Akande & Shah 2011, p. 836.}

163 _{See for example RC/Res.6, June 11, 2010, Annex III, p. 22. Even though the resolution itself considers the}

crime of aggression in the Rome Statute it states regarding jurisdiction of national courts as well: “It is un-

derstood that the amendments shall not be interpreted as creating the right or obligation to exercise domes- tic jurisdiction with respect to an act of aggression committed by another State.” See also Ruys 2017, p. 19.

164 _{Draft Code of Crimes Against the Peace and Security of Mankind with Commentaries 1996, p. 30.} 165 _{See the United Nations Charter 1945, article 39. The article states that “The Security Council shall deter-}

mine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make rec- ommendations, or decide what measures shall be taken in accordance with articles 41 and 42, to maintain or restore international peace and security.”

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of the Rome Statute (the Nuremberg Charter, the Tokyo Charter and the Control Council Law no. 10), in principle it could be possible to exercise domestic jurisdiction over the crime of aggression.166 _{At the current moment, it seems that this remains mostly a theoretical} question. However, to some extent it has been accepted that establishing national jurisdic- tion over the crime of aggression is possible, although not yet widely exercised.167 _When national jurisdiction would be exercised over the crime of aggression, it is probable that immunity questions arose.